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Ahmad v. City of St. Louis

United States District Court, E.D. Missouri, Eastern Division

November 15, 2017

MALEEHA AHMAD, et al., Plaintiffs,
v.
CITY OF ST. LOUIS, MISSOURI, Defendant.

          MEMORANDUM AND ORDER OF PRELIMINARY INJUNCTION

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on plaintiffs' motion for temporary injunction, which is fully briefed. The Court held a hearing on the motion on October 18, 19, and 23, 2017. Eighteen witnesses (including four of the plaintiffs) testified on behalf of the plaintiffs, and three witnesses testified for defendant. The parties also submitted video, photographic, and documentary evidence. By agreement both sides also submitted additional affidavits and declarations, which they asked the Court to consider as evidence. Counsel made extensive closing arguments at the conclusion of the hearing.

         After careful consideration of all of the evidence, briefs, and arguments of the parties, the Court will grant plaintiffs' motion in certain respects, as set out more fully below and in the accompanying Preliminary Injunction.

         Findings of Fact[1]

         On September 15, 2017, the Circuit Court for the Twenty-Second Judicial Circuit of Missouri issued its findings and verdict in State of Missouri v. Stockley, Cause No. 1622-CR02213-01. The decision prompted some members of the public to engage in protest activity around the St. Louis metropolitan area, including within the City of St. Louis. The protests, which began on the morning of September 15, 2017 and have continued to occur regularly since the verdict, concern not only the verdict itself but broader issues, including racism and the use of force by police officers. The participants often express views critical of police. This case concerns the response to some of these protests by the St. Louis Metropolitan Police Department[2] during the weekend of September 15-17, 2017.

         Protest activity began shortly after the announcement of the verdict on the morning of September 15, 2017. Protesters assembled in front of the state courthouse downtown near Tucker and Market streets. They did not have a permit to protest because the City of St. Louis does not require, and will not provide, a permit for protests. Police voluntarily blocked off that intersection to vehicular traffic to allow protesters to march in the streets. The protest was peaceful. Later that day, the protesters moved down Tucker toward City Hall and the old police station at Tucker and Clark. Corresponding streets were again blocked by police to allow protesters to march in the streets. Defendant's witnesses testified that during this time period protesters became violent and began throwing objects at police officers. Plaintiffs' witnesses testified that the protests remained peaceful, they were not violent, and they did not witness any other protesters become violent.

         Eventually protesters blocked one or more city buses containing police officers so the buses could not exit the area. Some protesters, including plaintiff Maleeha Ahmad, were intentionally blocking a bus to prevent it from leaving as an admitted act of civil disobedience. Lieutenant Timothy Sachs, commander in charge of the Civil Disobedience Team, was in charge of deploying defendant's tactical units and ordered the police officers to get off the bus and form a line to move the protesters away from the bus so it could leave. Police officers had shields for their bodies and on their helmets. Officers from the bicycle unit came to assist, placing their bikes in front of and beside their bodies as they moved forward and ordered the protesters to “Get Back!” The police moved the crowd north of Clark. Some officers sprayed hand held mace[3] at and on the protesters, including plaintiff Ahmad. The evidence is disputed as to whether any warnings were given before the deployment of mace at this time. Ahmad was not arrested for refusing to move when ordered to do so. The bus was eventually able to exit the area. Officers were injured in this encounter, and some arrests were made. Plaintiff Alison Dreith, who was not blocking the bus, testified that she was maced in the face by a police officer without warning. Darrell Smith gave similar testimony about being maced by officers around this time period without any warning. Dreith and Smith testified that they were not behaving violently, were not violating any orders of the police when they were maced, and were not arrested.

         A police vehicle parked in front of the police station was vandalized around 5:00 p.m. by a person jumping on it. The person engaged in the vandalism fled the scene when police approached, and the vehicle was moved. Keith Rose testified that other than the one person who broke the vehicle's windshield, no one else in the area was participating in violent activity. Rose heard police Sergeant Brian Rossomanno declare an unlawful assembly because the flow of traffic was being impeded. Police were continuing to block streets to prevent vehicular traffic from moving through this area at the time. Rose was immediately maced in the face with no warning by an officer he was filming. No dispersal order had been given at the time. Dana Kelly-Franks testified that around this time police began marching aggressively in a line with their shields held in front of their bodies. She was frightened for herself and children who were in the area. She testified that a police officer knocked her over with a shield and maced her simultaneously without any warning. She stated that she was standing on the sidewalk at Clark and was not behaving violently or engaged in any criminal activity at the time. She was not arrested. Plaintiff Joshua Wedding testified similarly that he was also maced by an officer marching in this line without any warning. Wedding testified that he was not behaving violently, was not violating any orders of the police when he was maced, and was not arrested. Wedding was filming the police at the time he was maced, and that video footage was introduced into evidence as Plaintiffs' Exhibit 5. It is consistent with his account of events. Eventually the streets were reopened to vehicular traffic as protest activity died down for the evening in the downtown area and moved to the Central West End.

         Rose attends many protests as a legal observer, and testified that in his experience, going back to 2014, St. Louis City police officers declare unlawful assemblies, issue dispersal orders, use force, and deploy chemical agents against those protesting police conduct, but not against other types of protesters. Rose attended a women's march in January of 2017, an LGBTQ march in February of 2017, and an immigrants' rights march in 2017. Police blocked traffic, sometime for hours, at each of these events to allow the protesters to march in the streets, and no unlawful assembly or dispersal orders were given at any of these protests. These protests were peaceful. Rose testified that he has never engaged in any violent activity at any protest he has attended but has nevertheless been subjected to chemical agents without warning only at protests critical of police. Sarah Molina testified that she was subjected to the use of chemical munitions without warning by City police officers in 2015 while protesting police conduct.

         Defendant's tactical unit was deployed to the Central West End on the evening of Friday, September 15, 2017, when protesters converged upon the home of the mayor of the City of St. Louis and began throwing objects at the house and at police officers. This protest was declared an unlawful assembly, police used a loudspeaker to order protesters to disperse, and protesters were warned that chemical munitions could be used if they did not comply. Plaintiffs do not challenge the police response to the protest at the mayor's house.

         Sachs testified that some of these violent protesters left the mayor's house on Lake and continued to roam the Central West End area. Some officers were injured, including some who received serious injuries, by objects being thrown at them. Sachs believed he heard gun shots and thought that the protesters were deploying chemical agents. He observed property damage. A dumpster fire was reported and attributed to protesters. The suspects for that fire were later arrested. Tactical units formed lines and moved down the streets of the Central West End, seeking to disperse protesters. Megan Green testified that she was protesting at the mayor's house, heard the order to disperse, and left the area to return to her car. After seeking shelter in a church, she was allowed to pass through the police line at Lindell but as she was walking to her car away from the protest area police in a tactical vehicle drove by and sprayed her with chemical agents without warning. She was not engaged in any criminal activity and was complying with the dispersal order at that time. Legal observer Steven Hoffman testified that he was subjected to chemical agents without warning as he was complying with the dispersal order because he was filming police activity. He testified that he was not engaged in any criminal activity and was complying with all police orders at the time. Central West End business owner Chris Sommers was not participating in the protest activity and testified that he was subjected to chemical agents by police officers because he was standing on the sidewalk outside his restaurant filming police activity and expressing his displeasure at the large police presence in the neighborhood. Rossomanno testified that he threw the inert smoke bomb which landed near Sommers. He stated that he was trying to throw it at protesters further down the street, but that it fell short and did not reach its intended target. An unidentified person standing next to Sommers picked up the smoke bomb and lobbed it back toward police. At that point, chemical agents were intentionally dispersed in Sommers's direction, and police officers rushed toward Sommers. Sommers and his customers ran inside the restaurant and locked the doors. The police banged on the doors but then left.

         On Sunday, September 17, 2017, there were peaceful protests in the downtown St. Louis area during the day and early evening. Around 8:00 p.m. that night, there were reports of property being damaged by protesters on Locust and Olive east of Tucker. Sachs sent his tactical team north on Tucker to investigate. Plaintiff William Patrick Mobley testified that at about the same time he was using his cell phone to record police arresting two people across the street on Pine when a police officer approached him and grabbed his cell phone without warning. The officer demanded Mobley sit on the ground and produce identification. He complied. Mobley then testified that officers accessed his phone without his permission, viewed its contents, and deleted the video. He also stated that officers threatened to manufacture evidence to arrest him and accused him of property damage. Eventually, the officers returned Mobley's cell phone and warned him to leave or he would be arrested.

         At the Bank of America at Olive and Tucker, the tactical unit encountered a group of protesters who donned goggles and masks as police approached. They were reaching inside backpacks. The Incident Commander in charge of the scene, Colonel Leyshock, told Sachs to give a dispersal order. Rossomanno then made an announcement over a loudspeaker telling people that an unlawful assembly had been declared, directing people to disperse, and warning them that chemical munitions may be used if they did not comply. Like the other dispersal orders issued by police over the weekend, this order did not specify how far protesters had to go to comply with the directive to leave the area. Sachs testified that he could not say “exactly how far would be enough” to comply with this, or any, dispersal order. Sachs testified that the group was told to leave and given a direction to leave in, but he did not make the announcement and could not hear or recall it, either. A tactical vehicle eventually deployed chemical munitions at the group. Several protesters were arrested, but most dispersed. Sachs testified that he was unaware of any property damage occurring in the downtown area after 8:30 p.m. No other witnesses observed any property damage or violence by protesters after this time period, either.

         Sachs testified that around 10:00 p.m. the decision was made to make a mass arrest of people remaining in the area of Tucker and Washington, which is three or four blocks away from where the earlier dispersal order was given. Sachs testified that this decision was made because there were large groups of people blocking traffic and Colonel Leyshock did not want to “allow people back into downtown” because he was worried about property damage. This decision was made by Leyshock while he and Sachs were at 13th and Olive, not at Washington and Tucker. Sachs also testified that he believed these were the same people from the bank earlier because some were wearing backpacks, masks, and goggles, which indicated to Sachs that “that they wanted some type of confrontation.” Sachs came up with the idea to block off the four streets surrounding the intersection with tactical units who would block the streets to prevent anyone from exiting and then march up the street, forcing anyone remaining in the area into the intersection for arrest.[4] According to defendant's witnesses, numerous dispersal warnings continued to be given from the time this decision was made until a final dispersal order was given around 11:00 p.m., at which point no people remaining in the area were free to leave. It was Sachs' stated intention to arrest everyone remaining in the area after the final dispersal order was given. The actual mass arrest did not take place until approximately 11:30 p.m.

         The area around the intersection of Tucker and Washington includes residential and commercial uses. Video footage of the intersection taken by Jonathan Ziegler around this time period and introduced as Plaintiffs' Exhibit 10 shows police continuing to block traffic with police cars and bike officers. It also shows some vehicular traffic moving through the intersection after the final dispersal order was given. A group of four to five individuals can be seen sitting on Tucker, and scattered individuals are, at times, walking or standing in the closed streets. This video does not show a large crowd congregating in the streets. The video shows some people shouting taunts at police officers. No violent activity by protesters can be observed on the video. Some people are wearing or carrying masks and/or goggles, but most are not. The scene appears calm and most people appear relaxed. There is a man with a baby in a stroller, and several people can be seen walking their dogs.

         The evidence is disputed regarding whether, and to what extent, additional unlawful assembly/dispersal warnings were given after the initial dispersal order was given at Olive and Tucker and before the 11:30 p.m. mass arrest at Washington and Tucker. Defense witnesses testified that the final warning took place at 11:00 p.m.

         Defendant's witnesses also testified that numerous additional warnings had been issued in and around these intersections over loudspeakers by Rossomanno and that Rossomanno and another officer issued warnings by speaking to people directly on the street as well. Plaintiffs' witnesses offered conflicting accounts about whether warnings were given and, if so, the number, frequency, and specificity of those warnings. Rose testified that he heard an initial warning to disperse when he arrived at the intersection between 9:30 and 10:00 p.m., tried to leave as directed, but was not permitted to do so by police. Then those police left and people were just standing around talking, and no further warnings were given.

         Sachs admitted that police freely allowed people ingress into the area after the initial dispersal order was given. Videographer Demetrius Thomas stopped in the area to film and observe what was happening after the initial dispersal order was given. He testified that he was allowed to enter the area and never heard any warnings about an unlawful assembly, dispersal, or chemical munitions. But when he tried to leave later, a police officer stood in front of his car and prevented him from leaving the area. Dillan Newbold testified that he did not arrive in the area to protest until almost 11:00 p.m. and was allowed to enter the area by police. He did not hear any dispersal orders or warnings about chemical munitions before being forced into the intersection for a mass arrest.

         No audible dispersal warnings can be heard on Plaintiffs' Exhibit 10, which lasts 45 minutes and ends with the 11:30 p.m. mass arrest. Ziegler testified that he heard Rossomanno issue one dispersal order telling people to move north on Tucker from Olive around 9:45 or 10:00 p.m. He complied with the request and walked to Washington and Tucker, where he saw police standing around along with people from the neighborhood eating outside. He described the scene as calm. He said some people stopped at the intersection where he stopped, while others continued walking. Ziegler stated that it was very unclear what the police wanted.

         Plaintiff Iris Nelson and her husband Alex Nelson live at 13th and Washington. They are not protesters.[5] On the evening of September 17, 2017, the Nelsons saw protest activity outside their apartment. They went to the roof of their building around 9:00 p.m. to observe the activity in the street. After about 45 minutes, they left the roof and went outside for a walk. They stayed on the sidewalks and crossed the streets at intersections. They passed police officers on the streets while they were walking around, but no police officer said anything to them or indicated that they should leave the area because an unlawful assembly had been declared and a dispersal order had been given. Aside from a larger than normal police presence, they observed the atmosphere to be like any other normal night in their neighborhood. They saw that some property had been damaged earlier, but did not see anyone damaging property. At some point, the Nelsons heard police tell a group of protesters to leave the area by going north on Tucker or west on Locust. Although the Nelsons did not understand this order to be directed at them, they walked north on Tucker anyway toward the direction of their home. After observing the police cars on Tucker, the Nelsons headed home on Washington. When they were almost home, they were prevented from entering their building by police lined up on Washington. They tried to find a different way to get inside their building, but when they got back to Tucker and Washington they realized they were closed in all four sides by police.[6]

         Upon Sachs's command, the tactical and bicycle units blocked off all streets, preventing egress from the area, and started marching toward the intersection of Tucker and Washington, forcing everyone into the intersection. Ziegler testified that when he realized that everyone was being pushed into the intersection, he and other people, including journalists, looked for a means of egress but that police would not communicate with them or give them any instructions about where to go. Sachs testified that people began to migrate to the northeast corner of the intersection. Plaintiffs' witnesses testified that they were pushed into a very small area by police to effectuate arrests. Plaintiffs' Exhibit 10 appears to show people confined in a very small area on the ground. People in the area were not offered a means of egress after the police lines had been struck but before they were arrested because, according to Sachs, “They'd had a chance to leave all evening.” In Sachs' opinion, everyone in the Tucker and Washington intersection should have left the downtown area and gone home when the first dispersal order was given at 8:30 p.m. at Tucker and Olive.

         The evidence is disputed about the circumstances of the mass arrest. As the officers closed in, plaintiffs' witnesses testified that the police officers began giving commands to either “Get Down!, ” “Sit Down!, ” or “Lay Down on the Ground!” Police wore shields over their faces and had shields over their bodies. It is difficult to discern any audible police commands being given on Plaintiffs' Exhibit 10, although some police can be seen pushing people down with their shields. People appear to be confused and frightened.

         All of plaintiffs' witnesses who were arrested in this mass arrest testified that they complied with all police commands or were unable to comply with the demand to “Lay Down on the Ground!” because the number of people confined in the small space made it impossible to do so. They all also testified that everyone around them appeared to be complying with all police commands as well. Ziegler testified that most people were already on the ground with their hands in the air before police even issued any commands. Iris Nelson testified that she was showered with pepper spray, along with the rest of the crowd, despite complying with all police commands. She also testified that her husband was dragged across the ground, kicked, and had his face shoved into the ground while being maced after his hands were cuffed behind his back. He was compliant with all police commands. Alex Nelson testified similarly. Both were arrested and spent the next day in jail.

         Ziegler testified that the entire crowd was misted with pepper spray for no apparent reason. Plaintiffs' Exhibit 10 shows an unidentified officer walking around with a hand held fogger shooting pepper spray at the arrestees, who all appear to be on the ground and complying with police commands. This officer issues no verbal commands to any arrestee, and no arrestee on the video appears to be resisting arrest. The video shows other officers shouting at people on the ground and making threatening gestures at them with mace. An unidentified man lying face down on the ground is picked up by his feet by two officers and dragged across the pavement. It is unclear from the video, but his hands may have been under his body contrary to police commands. Ziegler testified that he was maced in the face multiple times while he was attempting to comply with police commands. He also testified that he was maced in the face after his hands were cuffed behind his back and he was compliant with all police commands.

         Newbold testified that he was complying with police commands waiting to get arrested when he was dragged out of the group into the street and an officer ripped off his goggles and bandana while a second officer maced him directly in the face. Newbold testified that he put up no resistance either prior to, during, or after being maced. He also testified that he was cuffed tightly and when asked for the cuffs to be loosened he was told that he deserved it because he was protesting. Alex Nelson testified that his cuffs were cinched as tight as possible and he was hit in the head by an officer who asked him, “Do you like that cocksucker? We'll see you again tomorrow night.” Both Newbold and Nelson suffered injuries as a result of being cuffed too tightly, and both have sought medical treatment for these injuries.

         Plaintiffs and plaintiffs' witnesses testified that their treatment by police during the weekend of September 15-17, 2017 has made them fearful of participating in future protest activity to the degree they would like for fear of being subjected to similar retaliatory conduct by City police officers. Some witnesses testified that their experiences dissuaded them completely from participating in future protests. Many of plaintiffs' witnesses testified that they have also been subjected to similar treatment by City police officers when participating in past protests criticizing police conduct.

         Plaintiffs offered into evidence the affidavit of Elyssa Sullivan, who testified that she was arrested for participating in a protest relating to the Stockley verdict on October 3, 2017. [Pls.' Ex. 44]. The protest was peaceful. [Id.] She was unable to hear a muffled announcement by police and when she asked an officer what was said, she was told to leave or be arrested. However when she attempted to leave, the police officer blocked her avenue of egress and told her to “shut her bitch ass mouth.” [Id.] She was subsequently arrested. [Id.]

         Plaintiffs offered into evidence the affidavit of Heather De Mian, who testified that she was videotaping protest activity on the evening of September 29, 2017, from her wheelchair and was pepper-sprayed in the face by a City police officer without warning when she verbally questioned the police officer's treatment of another protester. [Pls' Ex. 43]. She testified that no dispersal order had been given, and that neither she nor any other protester she observed was engaging in violent activity. [Id.] The videotape she made of this incident was introduced into evidence as an exhibit to her affidavit and appears to show her and her camera lens being pepper sprayed after she shouts profanely at police.

         None of defendant's three witnesses personally arrested anyone during the mass arrest at the intersection of Washington and Tucker on the evening of September 17, 2017, although all claimed to have observed the arrests. These witnesses also all testified that they saw force being used only on non-compliant arrestees. Rossomanno testified that he only saw two non-compliant individuals get maced. All of defendant's witnesses denied observing anyone get maced or beaten once they had been cuffed. None of defendant's witnesses testified that they personally observed any of the plaintiffs or plaintiffs' witnesses being arrested on the evening of September 17, 2017. All defendants agreed that macing a restrained, compliant individual would amount to an inappropriate use of force.

         St. Louis City Ordinance 15.52.010 defines an unlawful assembly as follows:

Any two persons who shall, in this City, assemble together, or, being assembled, shall act in concert to do any unlawful act with force or violence, against the property of this City, or the person or property of another, or against the peace or to the terror of others, and shall make any movement or preparation therefor, and every person present at such meeting or assembly, who shall not endeavor to prevent the commission or perpetration of such unlawful act, shall be guilty of a misdemeanor.

         [Pls.' Ex. 46]. Missouri state law defines unlawful assembly in relevant part as follows:

A person commits the offense of unlawful assembly if he or she knowingly assembles with six or more other persons and agrees with such persons to violate any of the criminal laws of this state or the United States with force or violence.

Mo. Rev. Stat. §574.040(1). [Pls.' Ex. 49]. Sachs testified that an individual officer can decide, in his or her discretion, to declare an unlawful assembly, and there are no guidelines, rules, or written policies with respect to when an unlawful assembly should be declared. Sachs further testified that it was the custom or policy of the police department to permit an officer to declare an unlawful assembly if there is any criminal activity taking place, even in the absence of force or violence, depending upon the circumstances.

         As relevant to the instant motion, St. Louis City Ordinance 17.16.275 prohibits people from congregating in public places in such a manner as to obstruct, impede, interfere, hinder, or delay vehicular or pedestrian traffic. [Pls.' Ex. 50]. Any person who impedes traffic and refuses to obey an order to disperse, clear or otherwise move is guilty of failing to obey a dispersing order, a Class A misdemeanor. [Id.].

         Mo. Rev. Stat. § 574.060 states in relevant part as follows:

A person commits the offense of refusal to disperse if, being present at the scene of an unlawful assembly . . . he or she knowingly fails or refuses to obey the lawful command of a law enforcement officer to depart from the scene of such unlawful assembly . . . .

[Pls.' Ex. 51].[7]

         Defendant introduced into evidence several Special Orders of the St. Louis City Metropolitan Police Department which are relevant to the instant motion. Section XIII of Special Order 1-01 relates to the deployment of chemical agents for crowd dispersal and was issued in response to a settlement agreement entered in the case styled Alexis Templeton, et al., v. Sam Dotson, et al., Cause Number 4:14CV2019 CEJ, which was brought in this Court. [33-1; Def.'s Ex. C]. Section XIII describes chemical agent equipment as including, but not limited to, inert smoke grenades, Oleoresin Capsicum (OC) and Chlorobenzalmalononitrile (CS) gas grenades, launched OC, launched CS, pepperballs, and high-capacity, extended range OC spray. The special order does not, however, define chemical agents. The Templeton settlement agreement defines chemical agents as “tear gas, inert smoke, pepper gas, or other chemical agents.” [33-2; Def.'s Ex. E].[8] ...


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